PNJ v The Queen [2009] HCA 6

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HAYNE, CRENNAN AND KIEFEL JJ

PNJ APPLICANT

AND

THE QUEEN RESPONDENT

PNJ v The Queen [2009] HCA 6

10 February 2009

A8/2008

ORDER

Special leave to appeal refused.

On appeal from the Supreme Court of South Australia

Representation

W J N Wells QC with H M Heuzenroeder for the applicant (instructed by George Mancini & Co)

M G Hinton QC, Solicitor-General for the State of South Australia with H H L Duong for the respondent (instructed by Director of Public Prosecutions (SA))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

PNJ v The Queen

Criminal law – Jurisdiction, practice and procedure – Stay of proceedings – Abuse of process – Applicant convicted of wounding with intent to cause grievous bodily harm and sentenced to 7 years' imprisonment with 4 years' non-parole period – Sentence and non-parole period to commence on date applicant first taken into custody – Victim since deceased – Applicant now charged with murder after serving most of sentence for wounding with intent to cause grievous bodily harm – Generally court must impose mandatory minimum non-parole period of 20 years if convicted – Whether proceedings on information alleging murder should be permanently stayed as abuse of process – Whether administration of justice brought into disrepute – Whether prosecution for murder unjustifiably oppressive – Whether conviction for murder would constitute double punishment for conduct – Whether double punishment to be determined by reference only to non-parole period – Fixing of non-parole period.

Criminal law – Jurisdiction, practice and procedure – Stay of proceedings – Abuse of process – Backdating sentence and non-parole period – Whether any double punishment alleviated or eliminated by exercise of any power to backdate – Whether non-parole period could be backdated to commence at date applicant first taken into custody – Whether "time in custody in respect of an offence" included time spent in custody for wounding with intent to cause grievous bodily harm – Whether backdating commencement of sentence for murder equivalent to ordering service of that sentence concurrently with sentence for wounding – Relevance of legislative intention.